Shiv Dayal, J.
1. This second appeal arises from a suit for redemption and, in the alternative, for specific performance of a contract of reconveyance.
2. By a deed of sale dated September 4, 1961, (Ex. P-l). Nanhelal (Plaintiff No. 2) purported to have sold two houses for Rs. 3,000/- to Amirchand (defendant No. 1). Possession was given to Amirchand. That sale-deed contained an agreement of reconveyance within three years on payment of Rs. 3,000/-.
3. Nanhelal gave two notices to Amirchand to redeem and reconvey the suit houses to him. Jugal Kishore (defendant No. 2) is tenant of Amirchand. On September 2. 1964, Nanhelal sold the suit houses to Devidas (plaintiff No. 1) for Rs. 5,000/-.
4. The suit was Instituted on September 3, 1964, by Devidas and Nanhelal.
5. Amirchand resisted the suit. The trial Court held that the transaction of September 4. 1961, amounted to a usufructuary mortgage with a condition of sale. It was not a sale out and out, Nanhelal sent a notice dated August 25, 1964, by registered post and also a telegraphic notice dated August 31, 1965, requiring Amirchand to accept Rs. 3,000/-and reconvey the suit property. Devidas deposited the amount of Rs. 3,000/- in Court on September 3. 1964. In the result, the trial Court passed a decree for redemption in favour of Devidas against Amirchand on payment of Rs. 3,000/-. Amirchand was further directed to execute a deed of reconveyance in favour of Devidas at the cost of the latter,
6. Amirchand appealed. The learned Additional District Judge dismissed his appeal.
7. In this second appeal, it is first contended that the transaction of September 4, 1961, was not a mortgage. It was really a sale out and out.
8. If a sale and an agreement to repurchase are embodied in separate documents, the transaction cannot be a mortgage, even though the two documents may be contemporaneously executed; but the converse is not true. When a condition of repurchase is embodied in the document which effects or purports to effect a sale, it is always a matter for construction whether a sale was meant or a mortgage. In such a case, the Presumption is that it is a mortgage. That presumption can be displaced by clear and express words. If the conditions of Section 58(c) of the Transfer of Property Act are fulfilled, the deed should be construed as a mortgage. In such a case the real question is not what the parties intended or meant, but what the legal effect of the words used by them is. Surrounding circumstances can be looked to in case of ambiguity. See Chunchun Jha v. Sk. Ebadat All, AIR 1954 SC 345.
9. In the present case, the condition of repurchase is contained in the same document. This is the first and foremost consideration, Secondly, the consideration for reconveyance was Rs. 3,000/- which is the same amount as the consideration for the original transaction. Both these conditions were also found in P. L. Bapuswami v. N. Pattay, AIR 1966 SC 902, where their Lordships held that it amounted to a mortgage and a decree for redemption was made. See also M. A. Bashir v. Mrs. Ethel, 1957 MPLJ 101, where Chief Justice Hidayatullah reviewed the earlier decisions of this Court and also explained Chunchun Jha's case, AIR 1954 SC 345 (supra).
10. I am, therefore, of the opinion that the trial Court was right in holding that the deed of September 4, 1961, effected a mortgage.
11. The second contention for the appellant is that the right to repurchase was really not a right but a privilege and that privilege can be exercised only by the person to whom that privilege or concession was given but not by any one else. For this proposition, reliance is placed on Shanmugam Pillai v. Annalakshmi, 1949 FCR 537 = AIR 1950 FC 38, where it was observed that an option to repurchase is in the nature of a concession or privilege on fulfilment of certain conditions with a proviso that in case of default the stipulation would be void. In the first place this question does not arise when I have held that the deed of September 4. 1961, constitutes a mortgage, because it then necessarily follows that the mortgagor has a right of redemption if the mortgage subsists. Secondly, in the Federal Court case, the' terms and conditions were different In the present case, clearly the right was reserved by the vender and an obligation was accepted by the vendee. It has been held by Mr. Justice Bhargava in Sk. Gaffar V. Kasturibai, 1961 MPLJ 1298 that an agreement to resell can be enforced against the vendee by the assignee of the vendor unless the agreement prohibits such assignment. I respectfully concur in this view. The second contention must, therefore, be rejected.
12. It was then urged that there was no tender of money. It has been found that Nanhelal gave a notice by registered post on August 25. 1964, to Amirchand to reconvey the property. Moreover, on September 3, 1964. Devidas deposited the amount in the Court when the suit was instituted. This was within three years of the date of the original sale.
13. No other point was urged
14. The appeal is dismissed with costs.